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Why does Rashi (רש"י) cite three separate grounds—shinui ha'shem, shinui ma'aseh, and takanas hashavim—when takanas hashavim alone should permit using stolen wood for sukkah? The shiur argues that Rashi distinguishes between two halachos: being yotzei the mitzvah (מצוה) (achieved through the shinuyim, which create shutfus-like ownership sufficient for sukkah's din of l'chah) and exemption from returning the wood (achieved through takanas hashavim).
This shiur analyzes Gemara (גמרא) Sukkah 31a and unpacks a series of powerful difficulties in Rashi (רש"י)'s position regarding gozel eitzim v'sichach bahem—one who steals wood and covers his sukkah with it. Rashi states that the person is yotzei the mitzvah (מצוה) based on three grounds: shinui ha'shem, shinui ma'aseh, and takanas hashavim. Rabbi Zweig asks why all three elements are necessary. Takanas hashavim—the rabbinic enactment that one who stole wood for construction may return monetary value rather than dismantle the structure—should operate on its own, independent of any shinui. Furthermore, in other cases of takanas hashavim, such as kor (a beam stolen and incorporated into a building), there is no shinui yet takanas hashavim applies. Why then does Rashi invoke both shinui ha'shem and shinui ma'aseh alongside takanas hashavim? The shiur raises a cascade of additional difficulties in Rashi. The Lecha Mishna (Hilchos Sukkah 5:25 in the Rambam (רמב"ם)) asks that the Gemara's kashya "pshita, maishanom me'eitzim?" seems obvious: by eitzim there is a shinui (shinui ha'shem and shinui ma'aseh), so takanas hashavim should clearly apply; by a kor (beam), there is no shinui, so it is indeed a chiddush that takanas hashavim still applies. Yet the Gemara frames this as a question—suggesting that takanas hashavim does not depend on shinui. This is a strong difficulty in Rashi's formulation. The Beis Yosef and the Bach also cite the Tur, who brings the Ba'al Ha'Itur holding that if a thief refuses to pay for the stolen wood, he loses ownership. The implication is that according to Rashi, even without paying, the thief would be yotzei the mitzvah of sukkah—because Rashi posits that the shinui creates sufficient ownership to satisfy the mitzvah. The Beis Yosef challenges this: why would Rashi make takanas hashavim apply when the person refuses to pay? That seems to defeat the purpose of a takana designed to encourage teshuvah. Rabbi Zweig also raises an internal difficulty: the Maharsha's understanding of the Gemara on 32b regarding mitzvah haba'ah ba'aveira—when yei'ush konah combines with shinui ha'shem or shinui ma'aseh, it still constitutes mitzvah haba'ah ba'aveira. Why here on 31a does takanas hashavim with no yei'ush at all not pose a problem of mitzvah haba'ah ba'aveira?
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Sukkah 31a
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